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2019 DIGILAW 440 (GAU)

Vanlalfakzuala v. State of Mizoram

2019-04-08

MICHAEL ZOTHANKHUMA

body2019
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. Aldrin Lallawmzuala, learned counsel for the petitioner as well as Ms. Mary L. Khiangte, learned Government Advocate. 2. The petitioner is aggrieved by the State Government accepting the petitioners date of birth as 01.11.1957 and not 01.01.1961. The petitioners case in brief is that the petitioner was appointed as a temporary Veterinary Field Assistant on 22.12.1980 in the Animal Husbandry & Vety Department. His service was subsequently regularized vide Order dated 14.03.1985 w.e.f. 01.11.1984. The petitioner was thereafter promoted to the post of Supervisor Veterinary Field Assistant on 23.03.1988. The petitioners case is that at the time of entry into service in the AH & Vety Department, the petitioners service book was opened, wherein his date of birth was recorded as 01.01.1961. On the petitioner being appointed as an Assistant in the Department of Personnel & Administrative Reforms (DP&AR) on 17.11.1988, the petitioners service book was requisitioned by the DP&AR from the AH & Vety Department. However, instead of the petitioners original service book being sent by the AH & Vety Department to the DP&AR, the certified copy of the petitioners service book was sent on 30.05.1989, wherein the petitioners date of birth was changed to 01.11.1957. 3. The petitioners counsel submits that approximately 15 years later, the DP&AR issued an Office Memorandum dated 07.01.2014, wherein the applications for alteration/correction of date of birth of Government servants were to be submitted to the DP&AR, in the event of there being any alteration/correction/over writing of the date of birth in the service book. In pursuance of the OM dated 07.01.2014, the petitioner submitted a representation dated 05.03.2014 stating that as per the original service book earlier maintained by the AH & Vety Department, the petitioners date of birth was recorded as 01.01.1961. However, when the certified copy of the of the petitioners service book was sent from the AH & Vety Department to the DP&AR, the petitioners date of birth in the certified service book was recorded as 01.11.1957. The petitioner in his application thus requested the respondents to make correction of the incorrect date of birth recorded in the petitioners certified copy of his service book. 4. The petitioner in his application thus requested the respondents to make correction of the incorrect date of birth recorded in the petitioners certified copy of his service book. 4. The petitioners counsel further submits that subsequent to the above, the Director of AH & Vety Department issued a letter dated 17.02.2016 to the DP&AR stating that the original service book of the petitioner had been found in the Departments Godown/Store room. The petitioners counsel submits that the date of birth of the petitioner was 01.01.1961 in the petitioners original service book, which was found in the Godown/Store room of the AH & Vety Department. The State respondents thereafter considered the petitioners case and accepted the petitioners date of birth as 01.11.1957. Being aggrieved with the same, the petitioner filed WP (C) No. 119/2017, which was disposed of vide Judgment and Order dated 31.05.2018 as follows:- "14. I have considered the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including the 3 (three) service books produced by the learned Government Advocate. The service books include the service book of the petitioner maintained by the DP&AR since 1957, certified copy of the service book of the petitioner said to have been submitted to the DP&AR by the Directorate of Animal Husbandry & Veterinary Department and the third service book, which the petitioner claims to be the original service book on his entering Government servant in the year 1980. As submitted by the learned counsel for the petitioner, the alteration of date of birth would be permissible subject to the conditions laid down under Note 6 below FR 56. However, as noticed above since there are 3 (three) different service books claiming to be the service books of the petitioner showing 2 (two) different dates as his date of birth, it would be incumbent on the part of the respondent authority concerned to examine the said service books in the light of the claim made by the petitioner. Upon perusal of the decision taken by the DP&AR, as per the routine sheet is abstracted herein above, the only consideration which appears to have been made is with regard to there being an over-writing or not. Therefore, since there was no over-writing in the service book, maintained by the DP&AR, the same was accepted as the correct date of birth of the petitioner. Therefore, since there was no over-writing in the service book, maintained by the DP&AR, the same was accepted as the correct date of birth of the petitioner. However, it may be seen that the claim of the petitioner that the service book produced by the Directorate of AH & Vety Department to be the original service book has not been taken into consideration. Furthermore, the claim of the petitioner that 01.01.1961 is his actual date of birth as reflected in the provisional inter se seniority list furnished to him on 19.07.1988 while he was working under the Directorate of AH & Vety Department was also not considered. Moreover, as already noticed, the notification impugned by the petitioner with memo number i.e. No. A.21014/3/2010-PAR(SSW)/188, was subsequently said to be not in existence as per the reply made to the petitioner on 21.10.2016 by the Under Secretary to the Government and SPIO for DP&AR (SSW) against his query made under the RTI Act. Therefore, it will be necessary for the respondent authorities to re-examine the claim of the petitioner afresh in the light of the above observation. 15. In that view of the matter, the Notification dated 24.08.2016 (Annexure- 21) is set aside and the petitioner shall file a fresh representation to the respondent No. 2 indicating his grievance with supporting documents within a period of 3 (three) weeks from today. The respondent No. 2 shall thereafter consider the representation of the petitioner and take a decision within a period of 1 (one) month from the date of receipt of the representation. The decision taken by the respondent No. 2 shall be communicated to the petitioner. Since the petitioner has retired on superannuation with the acceptance of his date of birth as 01.11.1957, he will continue to remain as such. His further continuance in service on the basis of his claim that 01.01.1961 is his correct date of birth will be subject to the outcome of his representation." 5. In pursuance to the Judgment and Order dated 31.05.2018, the petitioner submitted a representation dated 18.06.2018 for consideration of his date of birth. The DP&AR thereafter vide letter dated 18.07.2018, informed the petitioner that the DP&AR had accepted the service book maintained by the DP&AR as original and accordingly, accepted the petitioners date of birth to be 01.11.1957. 6. In pursuance to the Judgment and Order dated 31.05.2018, the petitioner submitted a representation dated 18.06.2018 for consideration of his date of birth. The DP&AR thereafter vide letter dated 18.07.2018, informed the petitioner that the DP&AR had accepted the service book maintained by the DP&AR as original and accordingly, accepted the petitioners date of birth to be 01.11.1957. 6. The petitioners counsel submits that the petitioner date of birth is 01.01.1961, as can be seen from the Birth Certificate issued on 27.11.2018 by the Registering Authority, Registrar of Birth and Death, Aizawl Municipal Corporation. He also submits that a perusal of the original service book, as had been maintained by the AH & Vety Department has recorded the petitioners date of birth as 01.01.1961. He also submits that the Notification dated 24.08.2016, by which the petitioners date of birth had earlier been accepted by the DP&AR to be 01.11.1957 in File No. A.21014/3/2010-PAR(SSW)/188 had been found to be a non-existent file, as per the letter dated 21.10.2016 issued by the DP&AR. He submits that in view of the above reasons, his date of birth should be restored to 01.01.1961. He also submits that as per the judgment of the Division Bench of this Court in the case of Swadesh Ranjan Dey vs. State of Tripura and Others, (1999) 1 GLT 45, the declaration of date of birth given by the Government employee at the time of entry into Government service shall prevail and the date of birth reflected in the Admit Card and School Final Examination Certificate cannot unsettle the said declaration. He also submits that though the petitioners date of birth is found to be 01.11.1957, on the basis of Matriculation Certificate submitted by him, his date of birth having been recorded as 01.01.1961, the same has to prevail over the date of birth reflected in the Matriculation Certificate. 7. Ms. Mary L. Khiangte, learned Government Advocate, on the other hand, submits that the file number that had been mentioned in the Notification dated 24.08.2016 was purely a clerical mistake and the file number should be read as 19014/3/2010-PAR(SSW)/188, as the same pertains to the personal file of the petitioner. 7. Ms. Mary L. Khiangte, learned Government Advocate, on the other hand, submits that the file number that had been mentioned in the Notification dated 24.08.2016 was purely a clerical mistake and the file number should be read as 19014/3/2010-PAR(SSW)/188, as the same pertains to the personal file of the petitioner. She also submits that the petitioners claim that the AH & Vety Department were having the original service book of the petitioner and not the DP&AR is not correct, inasmuch as, the service book which the Director of AH & Vety Department has mentioned in this letter dated 17.02.2016 as having been found in the Godown/Store room, was found by the petitioner and it was at the instance of the petitioner that the said service book was sent by the AH & Vety Department to the DP&AR. She submits that the purported original service book of the petitioner that had been allegedly found in the Godown/Store room of the AH & Vety Department, was a fabricated document, as per the letter dated 04.07.2016 issued by the Director, AH & Vety Department and addressed to the Under Secretary to the Government of Mizoram, DP&AR (SSW). 8. She also submits that the details of family members given by the petitioner on 11.08.1997 and 25.11.2011 clearly show that the petitioner has written his date of birth to be 01.11.1957. Further, the ACRs of the petitioner starting from the period 17.09.1997 to 31.03.1998 and beyond, all show that the petitioner has recorded his date of birth in his ACRs as 01.11.1957. She also submits that in pursuance to the orders of this Court, the petitioner has produced his Matriculation Certificate issued by the Board of Secondary Education, Assam issued on 27.06.1997, showing that the petitioner was 19 years 4 months on 01.03.1977, thereby proving the respondents case that the petitioners date of birth was 01.11.1957. 9. She also submits that as per the Baptismal Certificate issued by the Church, the petitioner was baptized on 26.01.1958. Accordingly, the petitioner could have been baptized only if he was born prior to 26.01.1958. The Government Advocate thus submits that the above clearly goes to show that there is no infirmity in the State respondents accepting the date of birth of the petitioner as 01.11.1957. 10. I have heard the learned counsels for the parties. 11. Accordingly, the petitioner could have been baptized only if he was born prior to 26.01.1958. The Government Advocate thus submits that the above clearly goes to show that there is no infirmity in the State respondents accepting the date of birth of the petitioner as 01.11.1957. 10. I have heard the learned counsels for the parties. 11. In the service book claimed by the petitioner to be the original service book, the petitioners date of birth is recorded as 01.01.1961. However, in the service book claimed by the respondents to be the correct service book of the petitioner, the petitioners date of birth is recorded as 01.11.1957. This Court had directed the State respondents to consider the case of the petitioner, regarding correction of his date of birth, vide Judgment and Order dated 31.05.2018 passed in WP (C) No. 119/2017. The deliberation of the respondents, while considering the petitioners date of birth is in the note sheet, which is annexed to the writ petition, wherein it states that the petitioner had been directed to produce his High School Leaving Certificate/Admit Card for his Class X board examination, which he refused to oblige. It is also seen that the petitioner had not produced or brought to the notice of this Court his HSLC Certificate, issued by the Board of Secondary Education, Assam in WP (C) No. 119/2017. A perusal of the said Certificate clearly shows that the petitioner was born on 01.11.1957. 12. In the case of K.D. Sharma vs. Steel Authority of India Limited and Others, (2008) 12 SCC 481, the Apex Court has held that the party who invokes the extraordinary jurisdiction under Article 226 is supposed to be truthful, frank and open. He cannot be allowed to play "hide and seek" or to "pick and choose" facts. If material facts are suppressed or distorted, the very functioning of the Writ Courts would become impossible. The Apex Court further held that the Court has the inherent power to protect itself and to prevent the abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petitioner on that ground, the Court would be failing in its duty. In fact, such an application requires to be dealt with for Contempt of Court for abusing the process of the Court. 13. If the Court does not reject the petitioner on that ground, the Court would be failing in its duty. In fact, such an application requires to be dealt with for Contempt of Court for abusing the process of the Court. 13. In the present case, it is clear that the Matriculation Certificate has been produced for the 1st time during the pendency of this case and on the basis of the Order dated 01.10.2018, issued by this Court. The Matriculation Certificate was never produced by the petitioner in WP (C) No. 119/2017 and before the State respondents, as can be seen from the stand taken by the State respondents. This Court accordingly finds that the petitioner has not come to this Court with clean hands and on this count alone, the writ petition has to fail. 14. Besides the above, the family declaration made by the petitioner in his own hand on 11.08.1997 and 25.11.2011 shows that he has recorded his date of birth as 01.11.1957. The ACRs of the petitioner for the period 17.09.1997 to 31.03.1998, 01.04.1999 to 31.03.2000, 01.04.2000 to 31.03.2001, 01.04.2003 to 31.03.2004 and all other subsequent ACRs and PARs that are annexed in the affidavit-in-opposition, show that the petitioner has recorded his date of birth as 01.11.1957. Further, though the Director of AH & Vety Department, vide his letter dated 17.02.2016, had stated that the service book of the petitioner had been found in the Godown/Store room of the AH & Vety Office, the said Director has issued a clarificatory letter 04.07.2016, wherein it has been stated that the original service book of the petitioner was not found in the office but the petitioner himself had handed over the service book, which he claimed to be the original one and requested that the same be sent as and when the DP&AR insisted for the original service book. Accordingly, the said service book had been forwarded. The above clarificatory letter dated 04.07.2016 does not prove that the service book claimed by the petitioner, to be the original service book, is the original service book of the petitioner. This is at best, a disputed question of fact, which cannot be decided in this writ Court. 15. Be that as it may, the petitioner has not been able to give any reason the basis on which his date of birth was allegedly originally recorded as 01.01.1961. This is at best, a disputed question of fact, which cannot be decided in this writ Court. 15. Be that as it may, the petitioner has not been able to give any reason the basis on which his date of birth was allegedly originally recorded as 01.01.1961. The only document in support of his date of birth being 01.01.1961 is the Birth Certificate issued by the Registering Authority on 27.11.2018 i.e. after he retired from service. The petitioner has not made any averment to the effect that the petitioners date of birth, as recorded in the High School Leaving Certificate issued by the Board of Secondary Education, Assam is incorrect or wrong. Further, the documents that have been produced by the State Government showing the petitioners date of birth, as recorded by the petitioner himself, as 01.11.1957, has not been controverted by the petitioner. 16. In the case of Naseem Bano vs. State of U.P. and Others, 1993 Supp (4) SCC 46, the Apex Court has held that averments are deemed to be admitted, if not controverted. In the case of R.S. Kallolimath vs. State of Mysore and Another, (1977) 3 SCC 425 , the Apex Court has held that the State has a right to refix the date of birth of a Government servant, even though a different date of birth was accepted by the Government at the time of his appointment. In this particular case, there is nothing to show that the petitioners date of birth is not 01.11.1957 or that the service book claimed by the petitioner to be the original service book, is the original service. In fact, the petitioners signature in the service book claimed by him be the original Service Book, is not at all similar to his signature in the service book claimed by the respondents to be the correct Service Book. In fact, to the naked eye, the petitioners signature in the service book claimed by the respondents to be the correct service book is similar to the petitioners signatures in all the other documents mentioned above i.e. the family declarations, ACRs and PARs. 17. In fact, to the naked eye, the petitioners signature in the service book claimed by the respondents to be the correct service book is similar to the petitioners signatures in all the other documents mentioned above i.e. the family declarations, ACRs and PARs. 17. The petitioners counsel had taken a stand that in the case of Swadesh Ranjan Dey (Supra), the Division Bench of this Court had held that the declaration of birth as given by a Government servant, at the time of entry into Government service, should prevail over the date of birth reflected in the Admit Card and School Final Examination Certificate. On a perusal of the facts of Swadesh Ranjan Dey (Supra), this Court finds that the Government servant therein had entered into Government service and his date of birth was entered in his service book. Long after his entry into Government service, the said Government servant appeared in the School Final Examination, wherein, he had given a different date of birth, showing him to be younger than the date of birth recorded in the service book. It was in that context that the Division Bench had held that the date of birth recorded in the service book at the time of entry into Government service would prevail over the date of birth recorded in the Admit Card and School Final Examination Certificate. In the present case, though the petitioner had been given his HSLC Certificate on 27.06.1977 by the Board of Secondary Education, Assam, the petitioner did not produce the same at the time of his entry into Government service on 22.12.1980, or at the time his service book was prepared. In fact, the petitioner has only submitted his Matriculation Certificate after the filing of this writ petition for the 1st time, thereby suppressing a material fact during his service career. In the case of Deepak Bajaj vs. State of Maharashtra and Another, (2008) 16 SCC 14 , the Apex Court has held that it is well settled that a judgment of a court is not to be read mechanically as a Euclids theorem nor as if it were a statute. A judgment is an authority for the case it decides and not what logically follows from it. A little difference in facts can change the precedential value of a judgment. A judgment is an authority for the case it decides and not what logically follows from it. A little difference in facts can change the precedential value of a judgment. As the facts of this case and the facts of Swadesh Ranjan Dey (Supra), are different, the judgment passed in Swadesh Ranjan Dey (Supra) is not applicable to the case in hand. 18. In view of the above reasons, this Court does not find any merit in the writ petition and the same is accordingly dismissed.